Secondary sources influence in legal decision by Johnson Yesaya

 INTRODUCTION

Decision making by courts of law in Tanzania and many other jurisdictions depend on the availability of primary sources of laws with legal authority. Provisions of the laws itself are not enough to give clear decision in easy way, the use of secondary sources in decision making simplify the work since secondary sources explains primary sources in details. A court of law or tribunal is not bound to use provisions of the laws only in decision making but reference to other secondary sources of authorities can be employed by court.

Primary sources contain laws, orders, decisions, or regulations issued by a governmental entity or official, such as a court, legislature, or executive agency; the President; or a minister and other government officials . Primary sources are not necessarily binding, some primary sources are not binding authorities, case laws are primary sources of authority but in some circumstance they may be dis-regarded if they are against the law or court of higher grade compare to one made precedent may quash or reverse previous decision for reasons court think fit. Mandatory authority is binding on the court, but persuasive authority is not binding .

In Tanzania, subordinate courts are bound by decision of High Court and Court of Appeal, there is no room for subordinate courts to escape precedents made by H.C and C.A.T. Court of appeal can quash or reverse precedent made by H.C in case they were made against law, Court of appeal is bound by its own decision but it can decided to abandon previous decision passed by it.

Secondary sources offer analysis, commentary, or a restatement of primary law and are used to help locate and explain primary sources of law. Secondary sources may influence a legal decision but do not have the controlling or binding authority of primary sources. The number of secondary sources is, essentially, endless . Every source that is not primary is, by default, secondary. The purposes of secondary sources are twofold: one, they offer an explanation or understanding of a particular section of the law; two, they, ideally, are a good way to find primary authority. Secondary sources are not binding on the courts (i.e., they are only persuasive authority) but they often offer good, persuasive reasoning on which a court may rely .

SECONDARY SOURCES INFLUENCE IN LEGAL DECISION

Secondary source of authorities influences legal decision but they are not as binding as some primary sources of laws (i.e., provisions of statutes, orders, regulations). Secondary sources are persuasive, a person may cite secondary sources in legal memoranda and briefs, but a court will not be forced to answer it. There is endless secondary sources of legal authorities, but the following are the major known secondary sources;

Definitions (dictionaries with legal terminology and terms defined by law), in making decision court or tribunal may seek meaning of various legal terminologies, without understanding proper meanings of terminologies in statute, one can make wrong decision. Reference to legal dictionaries for proper meaning of words is necessary when needed, but they do not form part of mandatory/binding source of legal authorities, they only explain in broad the legal terminologies to help proper application of laws.

Legal Encyclopedias (multi-volume works about many different topics) . Encyclopedia offer excellent overviews of various legal topics. For example, if you aren’t sure of the difference between Res-judicata and Res-subjudice, a legal encyclopedia will give you solid, basic understanding . It will also provide you with citations to primary authority that may be useful. To research a particular issue within one jurisdiction, a good place to start is the jurisdiction’s own legal encyclopedia. Reference to encyclopedia is not prohibited in legal activities but encyclopedias are not part of binding authority, they are just persuasive.

Restatements offer general rules pertaining to particular areas of law. They are written like statutes, but they are not controlling law unless a jurisdiction has adopted them. Written by groups of experts in specific legal areas, restatements are written on a variety of topics, including torts, contracts, product liability, and property. Restatements are very useful because they offer a basic understanding of relevant principals, and contain extensive annotations divided by jurisdictions .

Legal Directories (listings of people and organizations), The term “legal directories” describes a broad range of products and services that research, list, rank, analyze, and assess lawyers and law firms. People and organizations which deals with legal matters have persuasive power in decision making due to their legal comments, articles, research reports and their practices. Court may make reference to report made by a particular organization which conducted a research on a particular topic corresponding to a matter before court .

In Tanzania, LHRC, TLS, THRDC and other organizations have influence in decision making due to their reports which point important legal matters. One can make reference to comments or reports of these organizations but the legal authorities from these organizations are not binding authorities to court of law. A court may decide to use or abandon such comments and reports of organizations with reputation.

Digests are not primary sources, but they are one of the fastest ways to find primary authority of law in a particular jurisdiction. They play a big role in simplifying caselaw search. Digests contain numerous citations to judicial decisions about particular topics and subtopics. They are organized alphabetically by topic. They also include an index volume, a words and phrases volume (where you may look up particular words that may lead you to a particular topic), and extensive table of contents. Every topic has its own table of contents, which is helpful if you’re unsure of the exact subtopic on which you should focus. Digests are not binding authorities, they lead a reader to acquire relevant caselaw of a particular type corresponding to a topic intended.

Law review articles, bar journal articles, and other legal periodicals. These articles provide opinion on statutes, case laws and other legal reform or development. They only get used in legal research during decision making and they are not part of binding sources. these opinions can be quite persuasive, they should be used discriminately. These types of articles can offer excellent historical research into a particular area of law.

CONCLUSION

Primary source of legal authorities are binding in nature, in decision making by court there is no room for any court to depart from the provisions of the law. Decision making depends in primary source of legal authorities (i.e., statutes, orders, and regulations), precedents form part of primary legal authority but in some situations, a court may depart or dis-regard illegal precedents passed without conforming to the laws of the state. In decision making, a court must rely and refer to provisions of statutes and its regulations because statutes are basic legal authority in deciding legal matters. Reference to secondary sources of legal authority is not prohibited but restricted, they are persuasive and not binding authorities.

REFERENCE

BOOKS

Shivji, I.G. “From the analysis of forms to the exposition of substances: the task of a lawyer intellectual”, in Vol.5 Nos. 1&2 EALR [1972]

Mukoyogo,M.C. Teaching Legal Method: A Personal note on challenges and problems in Effecting the Aim of legal Education in Tanzania” 1983(unpublished mimeo).

Mellinkof, D; language of the law, Little brown & Co. Boston & Toronto 1963

G. Williams, Learning the law, 11th Edn. London 1982 

W. Twining/D. Miers, How to Do Things With Rules, 3rd Edn. London 1992 App. IV.

ONLINE SOURCES

https://guides.loc.gov/law-secondary-resources https://lawshelf.com/coursewarecontentview/legal-research-sources

tanzanianweb.co.tz

https://guides.ll.georgetown.edu/secondary/encyclopedias